Judgment date: 19 December 2011
Thiering v Daly (No.2)  NSWSC 1585
Supreme Court of NSW1
Justice Garling delivered the primary judgment in Thiering v Daly  NSWSC 1345 in November 2011. A Curwoods Case Note was issued on 11 November 2011 addressing the decision in detail. Briefly, his Honour found that:
- A Lifetime Care & Support Scheme (LCS Scheme) participant is entitled to recover damages from the motor vehicle tortfeasor for past gratuitous attendant care services;
- Damages for future gratuitous attendant care services are not recoverable as damages by a LCS Scheme participant, as such services are subsumed within the LCS Scheme; and
- A LCS Scheme participant is entitled to have his/her attendant care needs met directly by the Lifetime Care & Support Scheme Authority (LCS Authority), as assessed by a treatment and care needs plan2.
During the hearing the LCS Authority posed a number of questions, which it sought to have answered by the Court. Whilst his Honour expressed a tentative view in the primary judgment, final Orders were reserved pending receipt of submissions.
This Case Note focuses on the answers to those questions and the Orders made in relation to them.
- Does the LCS Authority have an obligation under the Motor
Accidents (Lifetime Care & Support) Act 2006 (NSW) (LCS
Act) to pay for gratuitous care and assistance provided by
the second plaintiff ('the mother') to the first claimant
('the injured person') up to the date of judgment?
The LCS Authority may have an obligation to pay for the gratuitous care and assistance as provided by Mrs Thiering up to the date of the judgment, however, this will only be so if it is established that the cost of the attendant care and assistance to the claimant is an expense incurred within the meaning of s 6(1) of the LCS Act.
Importantly, however, his Honour considered that the mere provision of gratuitous attendant care services, without an accepted or determined legal liability, will not constitute such an expense.
- Is the care and assistance provided by Mrs Thiering
'expenses incurred by or on behalf of the injured person'
within the meaning of s 6(1) of the Act?
The provision of the attendant care services as provided by Mrs Thiering is not an expense within the meaning of s 6(1) of the LCS Act, unless it has been established by evidence that the LCS Authority has accepted such a liability, or else it has otherwise been determined that a legal liability rests in the LCS Authority to pay Mrs Thiering.
- Do the Guidelines (Part 8) authorise the LCS Authority to
decline payment to Mrs Thiering for inactive sleepovers (after 8
Part 8 of the Guidelines, in so much as it attempts to apply a blanket policy of restricting any payments whatsoever to family members and friends who provide inactive sleepovers, is invalid.
Accordingly, any attempt to avoid payment for such services (based solely) on Part 8 of the Guidelines, will not be effective.
- Can visiting an injured person whilst an in-patient in
hospital be defined as 'reasonable expenses' within the
meaning of s 6(1) of the LCS Act?
Any attendant care services can be considered "reasonable expenses" within the meaning of s 6(1) if:
- they are provided in a treatment and care needs plan; and
- there exists a legal liability on the LCS Authority to pay for those services (or the services have already been paid for).
- Does Mrs Thiering have standing to bring and maintain
proceedings against the LCS Authority? If so, issues 1 and 2 above
also arise for determination in Mrs Thiering's claim against
the LCS Authority.
Mrs Thiering has standing to bring a claim against the LCS Authority. Further, if she can establish a legal liability in the LCS Authority, for example one in accordance with the principles of quantum meruit, the LCS Authority would be obliged to pay Mrs Thiering for the "fair and reasonable value" of such services, provided the services were provided in accordance with a treatment and care needs plan.
In addition, Mrs Thiering would not be restricted by s 128 of the MACA in recovering the value of the services provided by her.
- Does Mr Thiering have any entitlement as against the motor
vehicle tortfeasor other than damages for non-economic loss and
loss of earning capacity?
As a participant in the LCS Scheme, the claimant is entitled to damages in accordance with s 128 to the date of judgment or settlement (from the motor vehicle tortfeasor), unless the LCS Scheme has incurred an expense under s 6(1) of the LCS Act.
The answers to the above questions, together with the primary judgment, raise important implications for insurers in approaching their reserves, particularly in relation to past gratuitous attendant care services.
An injured person is entitled to damages for past gratuitous attendant care services, as modified by s 128 of the MACA, regardless of whether the injured person is a participant in the LCS Scheme or not.4
Moreover, unless the LCS Authority has already made payments in relation to the past gratuitous services, or is under a legal liability to do so, the damages are recoverable from the motor vehicle tortfeasor. As such, in order for insurers to limit their exposure, it is essential that injured persons have their needs met by the LCS Authority.
Accordingly, where an injured person is a participant in the LCS Scheme, it is recommended that insurers request the following particulars:
- Whether the assistance is being provided on a gratuitous or commercial basis;
- The type of assistance being provided;
- Whether the assistance is provided pursuant to a treatment and care needs plan; and
- If the services have been provided otherwise than in accordance with a treatment and care needs plan, whether a Review been sought under s 25 of the LCS Act.
Insurers should also request an injured person (and/or the relevant provider of the gratuitous services) enforce the legal right he/she may have against the LCS Authority.
Importantly, a care provider in such a case is entitled to the "fair and reasonable value" of the services and is not restricted to either the hourly rate provided for in s 128 of the MACA, or the statutory maximum (40 hours per week).
In catastrophic cases in which gratuitous service providers are often required to 'supervise' an injured person for 24 hours a day, it is understandable that this legal right would be far more valuable to a gratuitous service provider (who does not have the restrictions set in s 128) than the injured person.
It is also arguable that in an appropriate claim the failure by an injured person to review a treatment and care needs plan or enforce a legal right for the LCS Authority to meet the reasonable expense of the entire need for attendant care services would give rise to a failure to mitigate their loss under s 136. That is, an insurer may contend that any award for past gratuitous attendant care services should be reduced as the reasonable past care needs would have been met by the LCS Authority had the injured person pursued their legal right against it.
Having regard to the nature of injuries sustained by a participant in the LCS Scheme and noting that the Court has held the legal right to recover the expense may rest in the provider of the gratuitous services and not the injured person, insurers will need to give careful consideration to the merits of such an allegation before it is made.
1 Garling J
2 Pursuant to s 23 of the Motor Accidents (Lifetime Care & Support) Act 2006 (NSW)
3 Only the questions which his Honour answered have been commented upon in this Case Note. Where appropriate, the questions have been summarised for the sake of brevity.
4 Thiering v Daley  NSWSC 1345 at 157
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